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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. No. 14-07-01006-CV
Regular Panel Decision
Jul 21, 2009

MID-CONTINENT CAS. v. Global Enercom Mgmt.

This case involves an insurance coverage dispute between Mid-Continent Casualty Company (appellant insurer) and Global Enercom Management, Inc. (appellee insured). The dispute arose from a fatal accident involving subcontractor Allstates Construction Company employees on a cellular tower repair project in Arkansas, where a pulley system powered by a pick-up truck failed, causing three workers to fall to their deaths. Mid-Continent denied Global Enercom's request for defense and indemnity under Allstates' commercial general liability (CGL) and commercial auto policies, citing an auto exclusion and a contractual liability exclusion. The trial court granted Global Enercom's declaratory judgment motion, finding coverage. The Court of Appeals of Texas, Houston (14th Dist.), affirmed the trial court's judgment, concluding that the auto exclusion did not apply because the pick-up truck did not itself produce the injury (the defective rope did), and the contractual liability exclusion did not apply as the subcontract was deemed executed under Texas law prior to the accident, despite a delay in Global Enercom's signature.

Insurance Coverage DisputeCommercial General Liability PolicyCommercial Automobile PolicyAuto ExclusionContractual Liability ExclusionSummary JudgmentDeclaratory Judgment ActionAppellate ReviewCausation in InsuranceInterpretation of Insurance Policies
References
22
Case No. MISSING
Regular Panel Decision
May 17, 2011

Avrio Group Surveillance Solutions, Inc. v. Essex Insurance

Plaintiff Avrio Group Surveillance Solutions commenced a declaratory judgment action against Defendant Essex Insurance Company, seeking an order to defend and indemnify Avrio in a personal injury action. Essex filed a motion to dismiss, which was converted to a motion for summary judgment. The court addressed two main exclusions: the Completed Operations Exclusion and the Contractual Liability Exclusion. The court found a potentiality of coverage under the Completed Operations Exclusion due to ambiguities in the term "intended use" and unresolved factual issues regarding the completion of work, denying summary judgment on this ground. However, the court granted summary judgment in favor of Essex regarding the Contractual Liability Exclusion, as the subcontract did not qualify as an "insured contract" under the policy's specific definition in effect at the time of the incident, and Avrio was presumed to have agreed to these terms. The case will proceed to an evidentiary hearing on the Completed Operations Exclusion.

Insurance CoverageDeclaratory JudgmentSummary JudgmentContractual Liability ExclusionCompleted Operations ExclusionInsurance Policy InterpretationChoice of LawMaryland Contract LawFederal Civil ProcedureDuty to Defend
References
37
Case No. 2020 NY Slip Op 07851
Regular Panel Decision
Dec 23, 2020

Bodlovic v. Giannoutsos

Miodrag Bodlovic, a plaintiff, sustained personal injuries while working for Gigi Salon & Spa due to a malfunctioning rollup gate. He and his wife sued the premises owners, Frank Giannoutsos, Paraskevi Giannoutsos, and Vasiliki Giannoutsos, alleging negligence. The Giannoutsos defendants, named as additional insureds on Gigi Salon's commercial general liability policy with United States Liability Insurance Company (USLIC), sought a declaration that USLIC was obligated to defend and indemnify them. USLIC moved for summary judgment, arguing a bodily injury exclusion in its policy precluded coverage. However, the Supreme Court, Queens County, denied this motion, finding an exception to the exclusion for liability assumed under an 'insured contract,' which in this case was the lease agreement between Gigi Salon and the Giannoutsos defendants. The Appellate Division, Second Department, affirmed the Supreme Court's order, concluding that USLIC failed to demonstrate, prima facie, that the defendants were not entitled to coverage.

Insurance policyAdditional insuredSummary judgmentBodily injury exclusionInsured contractLease agreementIndemnificationAppellate reviewCoverage disputePremises liability
References
10
Case No. MISSING
Regular Panel Decision

Nutmeg Insurance v. Clear Lake City Water Authority

Plaintiff Nutmeg Insurance Company sought a declaratory judgment against Defendant Clear Lake City Water Authority, asserting no duty to defend or indemnify Clear Lake in an underlying state court suit. The underlying suit alleged breach of contract, quantum meruit, and unconstitutional taking related to Clear Lake's failure to purchase water and sewer facilities. Nutmeg argued that its insurance policies (errors and omissions, public entity commercial liability, and excess liability) did not cover intentional contract breaches, applied only to fortuitous events, and contained specific exclusions for inverse condemnation, bond-related liability, and contractual obligations. Clear Lake countered that Nutmeg's reservation of rights was inadequate, leading to waiver or estoppel of its defenses, and that an alleged "advertising injury" should trigger coverage. The court granted Nutmeg's motion for partial summary judgment, concluding that the policies did not cover the alleged damages, intentional breaches, or specific claims due to applicable exclusions. It also rejected Clear Lake's waiver and estoppel arguments, finding no demonstrable prejudice. The court determined that if there is no duty to defend, there is no duty to indemnify.

Declaratory JudgmentInsurance CoverageDuty to DefendDuty to IndemnifyBreach of ContractCommercial General LiabilityErrors and Omissions PolicyExcess Liability PolicyPolicy ExclusionsInverse Condemnation
References
72
Case No. MISSING
Regular Panel Decision
Jun 30, 2000

Podbielski v. KMO-361 Realty Associates

The case involves an appeal from a judgment following a personal injury lawsuit. The plaintiffs' decedent, a construction worker, died after falling from an unguarded scaffold. The Supreme Court granted the plaintiffs' motion for summary judgment on liability under Labor Law § 240 (1) against the KMO defendants (property owner and construction manager), and also granted the KMO defendants' cross-motion for contractual indemnification against the third-party defendants (decedent's employers). The judgment, which incorporated a jury verdict on damages, was appealed by both the KMO defendants and the third-party defendants. The appellate court affirmed the judgment, holding that the lack of safety devices was a proximate cause of the death, and rejecting the intoxication and recalcitrant worker defenses.

Personal injurywrongful deathconstruction accidentscaffold accidentscaffold fallLabor Law § 240 (1)summary judgmentliabilitycontractual indemnificationproximate cause
References
13
Case No. 222 AD2d 184
Regular Panel Decision

Nuzzo v. Griffin Technology Inc.

Plaintiffs Karen L. Patzer and Patricia E. Nuzzo, employees of Syracuse University (SU), were injured while operating a cash register manufactured by Griffin Technology Incorporated (Griffin). SU, contractually an additional insured under Griffin's liability policy with Federal Insurance Company (Federal), sought coverage after being impleaded by Griffin. Federal retroactively added SU as an additional insured but subsequently disclaimed coverage based on an employer's liability exclusion. The court ruled Federal's four-month delay in disclaiming coverage to SU was untimely, making the exclusion inapplicable. Consequently, the antisubrogation rule required dismissal of Griffin's third-party actions against SU, and SU's counterclaims for breach of contract were dismissed as moot.

Untimely DisclaimerAdditional InsuredEmployer's Liability ExclusionAntisubrogation RuleContractual Duty to InsureRetroactive CoverageSummary JudgmentAppellate ReviewIndemnificationContribution
References
15
Case No. MISSING
Regular Panel Decision

Elrac, Inc. v. Exum

This case addresses whether a self-insured employer is liable to its employee for uninsured motorist benefits, despite the Workers' Compensation Law's exclusivity provision. Birtis Exum, an employee of self-insured Elrac, Inc., was injured in an accident with an uninsured driver while driving an Elrac car in the course of his employment. Exum sought uninsured motorist benefits from Elrac, which Elrac attempted to stay. The Appellate Division allowed arbitration to proceed, and this Court affirmed that decision. The Court referenced Matter of Allstate Ins. Co. v Shaw to establish that self-insurers have the same liability for uninsured motorist coverage as insurance companies. Despite the exclusivity clause of Workers’ Compensation Law § 11, the Court determined that an action to enforce uninsured motorist liability against a self-insurer is essentially contractual, and therefore not barred by the Workers' Compensation Law.

Self-insured employeruninsured motorist benefitsWorkers' Compensation Lawexclusivity provisioncontractual liabilityautomobile accidentstatutory interpretationappellate reviewNew York lawElrac
References
4
Case No. MISSING
Regular Panel Decision

In re the Liquidation of Consolidated Mutual Insurance

The case concerns Arcade Cleaning Contractors, Inc.'s claim against the New York State Property and Liability Insurance Security Fund for reimbursement of a $1,500 payment made in a settlement. Arcade sought indemnification from its insolvent liability insurer, Consolidated Mutual Insurance Company, for a claim arising from an employee's injury. The Superintendent of Insurance determined that the Security Fund, established by Insurance Law § 334, does not cover an insured's claim against its insolvent liability insurer resulting from contractual or common-law liability to indemnify a third party for employee injury. The Supreme Court initially allowed Arcade's claim, but the Appellate Division reversed, upholding the Superintendent's determination. The Court of Appeals affirmed the Appellate Division's order, finding the Superintendent's interpretation to be neither contrary to statute nor unreasonable, given the exclusion of workers' compensation and employer's liability insurance (defined in Insurance Law § 46 subdivision 15) from the Security Fund's coverage.

Insurance LawWorkers' CompensationInsolvencySecurity FundIndemnificationThird-Party ClaimsStatutory InterpretationEmployer's LiabilityContractual LiabilitySuperintendent of Insurance Authority
References
15
Case No. MISSING
Regular Panel Decision

Purkey v. American Home Assurance Co.

The Tennessee Supreme Court addressed three certified questions from the U.S. District Court for the Eastern District of Tennessee concerning the validity of household or family exclusion clauses in automobile insurance liability policies under Tennessee law and public policy. Petitioner Janice W. Purkey argued that these exclusions were void following amendments to the Tennessee Financial Responsibility Act and the abolition of intrafamily tort immunity. However, the Court referenced its prior consistent rulings upholding such clauses and emphasized Tennessee Code Annotated § 56-7-121, which explicitly permits contractual exclusions 'notwithstanding any other provision of law to the contrary.' The Court concluded that such exclusions do not violate Tennessee law or public policy, thereby answering the first certified question in the negative and declining to address the remaining questions.

Automobile InsuranceLiability CoverageHousehold Exclusion ClauseFamily Exclusion ClauseTennessee LawPublic PolicyFinancial Responsibility ActContract InterpretationIntrafamily Tort ImmunityCertified Questions
References
18
Case No. MISSING
Regular Panel Decision
Oct 15, 2003

Realm National Insurance v. Hermitage Insurance

Plaintiff, a workers’ compensation carrier, initiated an action against a general liability carrier (defendant) seeking to compel contribution to the defense and indemnification of their shared insured in an underlying third-party personal injury action. The underlying action sought common-law and contractual indemnification from the insured for liability related to an employee's injuries sustained during employment. The defendant's general liability policy contained specific exclusions for bodily injury to an employee arising out of or in the course of employment, as well as for obligations to share or repay damages due to such injuries. The court determined that the defendant's disclaimer was not untimely under Insurance Law § 3420 (d) and that the defendant had not waived reliance on the applicable exclusionary language. The Supreme Court's order, which granted the defendant’s motion to dismiss the complaint, was modified on appeal to declare in the defendant’s favor that it is not obligated to defend, indemnify, or reimburse the plaintiff in connection with the underlying personal injury action, and otherwise affirmed.

Insurance LawWorkers' Compensation InsuranceGeneral Liability InsuranceCoverage DisputeDisclaimer ValidityEmployee Exclusion ClauseIndemnification ClaimDeclaratory Judgment ActionMotion to DismissAppellate Division Decision
References
8
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